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2020 DIGILAW 883 (MP)

Madhuri Kumawat v. Abhinav Kumawat

2020-09-09

PRAKASH SHRIVASTAVA

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ORDER : Prakash Shrivastava, J. 1. Shri Praveen Kumar Bhat, learned counsel for the petitioner. Shri Gourav Singh Chouhan, learned counsel for the respondent. Heard through video conferencing. 2. By this miscellaneous petition, the petitioner has challenged the order of the Family Court dated 21/8/2020 whereby petitioner's application for waiving the cooling off period for divorce by mutual consent has been rejected. 3. The brief facts are that marriage between the petitioner and the respondent was solemnised on 4/2/2014 and as per the plea taken by the parties the respondent had started living separately in her parental house from 4/10/2014, thereafter the proceedings under the Domestic Violence Act, proceeding for maintenance and other criminal cases were registered and which are pending. Further case of the parties is that a compromise has been arrived at between the parties to seek divorce by mutual consent and on 25/1/2020 parties have filed a joint application for divorce by mutual consent u/S. 13-B of the Hindu marriage Act in which their preliminary statements were recorded on 27/7/2020 and conciliation also failed and an application for waiving the cooling off period of six months was filed, but that has been wrongly rejected by the impugned order and the matter has now been fixed for recording of final statement on 4/1/2021. 4. Learned counsel for both the parties have jointly submitted that the conditions which have been laid down by the Hon'ble Supreme Court in the case of Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 : ( AIR 2017 SC 4417 ) are duly satisfied in the matter, therefore, the trial court ought to have allowed the application. 5. Having heard the learned counsel for parties and on perusal of the record, it is noticed that the parties in their joint application u/S. 13-B of the Hindu marriage Act have clearly stated that the respondent is living separately since 4 October, 2014. The parties have disclosed that Cr. Revision No. 1219/2017 arising out of the proceedings for maintenance is pending before the High Court, the report was made by the respondent for offence u/Ss. 498 and 316 and in respect thereof Sessions Case No. 69/2015 is pending before the IV Addl. District and Sessions Judge and arising out of that matter Cri. The parties have disclosed that Cr. Revision No. 1219/2017 arising out of the proceedings for maintenance is pending before the High Court, the report was made by the respondent for offence u/Ss. 498 and 316 and in respect thereof Sessions Case No. 69/2015 is pending before the IV Addl. District and Sessions Judge and arising out of that matter Cri. R. No. 1499/2016 is also pending and one MCC No. 1425/2018 which is a transfer petition is pending and in view of all these disputes and considering the fact that it is not possible for the parties to live together they have entered into a settlement dated 25/1/2020 settling all their disputes and seek divorce by mutual consent. 6. The record further reflects that the preliminary statements of the parties were recorded in the Family Court on 27 July, 2020 wherein the respondent No. 2 had stated that she had received Rupees three lakhs which was the amount settled for permanent alimony. It is also reflected that the Family Court had made attempt for conciliation/mediation on 28/2/2020 and 27/7/2020 but the parties were firm in their stand about divorce and the mediation/conciliation did not succeed. 7. The Supreme Court in the matter of Amardeep Singh v. Harveen Kaur(supra) has laid down the following conditions for waiving the cooling off period:- "19- Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following: (i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself; (ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; (iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; (iv) the waiting period will only prolong their agony." 8. Having regard to the facts which are pointed out by learned counsel for parties and also the fact which are noted above, I am of the opinion that the aforesaid conditions are satisfied in the matter. The waiting period at this stage will only prolong the agony of the parties. In view of the aforesaid, the impugned order cannot be sustained and is hereby set aside. The parties are at liberty to file appropriate application before the trial court and the trial court is directed to consider the same without any unnecessary delay. 9. The petition is accordingly disposed of. C.C as per rules.